(Circulated by
authority of the Minister for Regional Australia, Regional
Development, Local Government, the Minister for the Arts, the
Honourable Simon Crean MP)

PROTECTION
OF CULTURAL OBJECTS ON LOAN BILL 2012

OUTLINE

The Protection
of Cultural Objects on Loan Bill 2012 (the Bill) provides for the
establishment of a scheme to provide protection for cultural
objects on loan. While the objects are in Australia the
legislation limits the circumstances in which lenders, exhibition
facilitators, exhibiting institutions and people working for them
can lose ownership, physical possession, custody or control of the
objects because of:

·
legal proceedings in Australian or foreign courts;

·
the exercise of certain powers (such as powers of seizure) under
Commonwealth, State and Territory laws; or

·
the operation of such laws.

This
scheme will operate as an approval based scheme. Objects
normally in a foreign country, will be protected if they are
imported into Australia on loan for temporary public exhibition
under arrangements involving institutions approved by the
Minister. Certain institutions will be able to apply to the
Minister for approval and the Minister may approve the institution
for a specified period of not more than 60 months. Objects of
any description will be protected from the time of their
importation into Australia to their export, to a maximum of two
years. Objects on loan for a period of longer than two years
will not be protected unless exceptional circumstances
exist.

The
legislation addresses a significant obstacle that Australia’s
major cultural institutions (such as museums, galleries and
libraries) face in securing the loan of foreign objects and aligns
Australia with an emerging international standard to provide
protection for cultural objects on loan. Under existing
Commonwealth legislation, protection for objects on loan only
applies in specific and limited circumstances under the
Protection of Movable Cultural Heritage Act 1986 . The
absence of more comprehensive legislation has made it increasingly
difficult for those institutions to secure foreign loans.

Loans of
cultural objects, such as paintings, prints, sculptures, textiles
and manuscripts, are essential for Australia’s major museums
and galleries to consistently deliver first-class exhibition
programs. They are also a key way in which institutions can
provide Australians with access to a comprehensive range of objects
that may not be represented in Australian collections. This
is particularly the case for major international works of art which
have increased significantly in value. Those works can be
underrepresented in Australia’s public collections as they
rarely come on the international art market and when they do they
can be prohibitively expensive such that Australian institutions
may not be able to compete for their purchase.

Exhibitions
involving international loans play an important role in the life of
Australia’s collecting institutions and they are a popular
drawcard with the public. The inability to secure loans of
foreign cultural objects limits the academic, educational and
economic potential of exhibitions and puts at risk the substantial
cultural, social and economic benefits that major international
exhibitions deliver.

The scheme
established by this Bill will address the current barriers that are
inhibiting foreign lenders from agreeing to loans by providing a
level of protection that would have the effect of encouraging
foreign lenders to loan objects to Australia’s major
collecting institutions for temporary public exhibition.

Financial
impact statement

The Protection
of Cultural Objects on Loan Bill 2012 is not expected to have an
impact on Commonwealth expenditure.

Statement of Compatibility
with Human Rights

This Bill is compatible
with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011 .

Overview of
the Bill

The Bill
establishes a scheme to provide protection for
cultural objects on loan. While the objects are in Australia
the legislation limits the circumstances in which lenders,
exhibition facilitators, exhibiting institutions and people working
for them can lose ownership, physical possession, custody or
control of the objects because of:

·
legal proceedings in Australian or foreign courts;

·
the exercise of certain powers (such as powers of seizure) under
Commonwealth, State and Territory laws; or

·
the operation of such laws.

The Bill
pursues the objective of enhancing cultural life in Australia and
promoting the right to enjoy and benefit
from culture by increasing access to objects brought into Australia
under loan arrangements for temporary public
exhibition.

Human rights
implications

The Bill
engages the following human rights:

Right to enjoy and benefit
from culture

The Bill engages the right
to enjoy and benefit from culture, including the right to take part
in cultural life.

Article 15(1)(a) of the
International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises the right of everyone to take part in cultural
life. Article 15(2) states that the steps to be taken by
parties to the ICESCR to achieve the full realisation of the right
shall include those necessary for the conservation, the development
and the diffusion of science and culture. Article 15(4)
states that parties to the ICESCR recognise the benefits to be
derived from the encouragement and development of international
contacts and co-operation in the scientific and cultural
fields.

To the extent that the
right to enjoy and benefit from culture is engaged, this right is
promoted by the Bill. The Bill will enhance cultural life in
Australia by addressing a significant obstacle Australia’s
major museums and galleries face in securing the loan of foreign
cultural objects.

To that end, the scheme
established by the Bill overcomes the limitation in existing
Commonwealth legislation which provides protection for objects on
loan from overseas only in specific and limited
circumstances. The absence of more comprehensive legislation
has made it increasingly difficult for institutions to secure loans
as they are not able to provide assurances to lenders that objects
will be returned at the end of the loan
period.

The Bill supports cultural
exchange and international co-operation. Loans of cultural
objects, such as artworks and artefacts, are an important element
of cultural diplomacy and can strengthen bilateral and multilateral
relations. They are also an important way for cultural
institutions to provide Australians with access to a comprehensive
range of cultural objects that are not represented in Australian
collections.

Right to an effective
remedy

The Bill engages the right
to an effective legal remedy.

Article 2(3)
of the International Covenant on Civil and Political Rights (ICCPR)
imposes an obligation on countries to provide effective remedies
for the victims of human rights violations. Article 6 of the
International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) imposes an obligation on countries to
provide everyone in their jurisdiction with effective protection
and remedies against any acts of racial discrimination which
violate human rights as well as the right to seek just and adequate
reparation or satisfaction for any damage suffered as a result of
such discrimination.

The Bill
pursues the legitimate objective of encouraging the loan of objects
from overseas for temporary public exhibition in Australia.
To the extent that the Bill limits the right to an effective legal
remedy, those limitations are reasonable, necessary and proportionate
and the limitations are not arbitrary.

The Bill
provides a temporary limitation on the right of a person to
commence action through the Australian legal system, or to enforce
a judgement or order of a federal court or a court of a State,
Territory or foreign country, while an object which is protected
under Part 2 of the Bill is in Australia’s
jurisdiction. This could potentially include persons or
groups who may consider they have experienced a loss of cultural
property as a result of human rights violations in the past.
Circumstances where that may have occurred could include if
cultural objects were removed during civil war, conflict or were
compulsorily acquired by the state.

This
limitation will not apply to significant Australian cultural
heritage material defined as Class A objects under the
Protection of Movable Cultural Heritage Act 1986 (PMCH
Act). The exclusion of Class A
objects from the application of the legislation recognises that
Aboriginal and Torres Strait Islander cultural material in that
category is particularly sensitive and culturally
important. Material in that
category includes human remains, bark and log coffins, secret
sacred ritual material, rock art and dendroglyphs (carved
trees).

The degree of
limitation on other objects is considered proportionate to the
objective of the Bill as the limitation on the ability to take
action while the object is in Australia is necessary to achieve the
stated objective of enhancing access to cultural objects. The
limitation on the ability to take action through the Australian
legal system, for the limited period of the loan, has been balanced
against the public interest of the significant social, economic and
cultural benefits that can be delivered as a result of Australian
institutions being able to secure loans.

Additionally,
to balance these measures, the Bill includes provisions enabling
regulations to be made in relation to borrowing institutions
consulting with persons or groups who may have an interest in
proposed loans as well as requirements to publish certain
information on proposed loans prior to their importation into
Australia (clause 21 refers).

Paragraph
21(3)(a) provides that regulations may be made for the purposes of
requiring consultation by borrowing institutions with members of
communities, or organisations representing them, about proposed
loans of objects relating to those communities. This is
relevant to proposed loans of objects that may be of particular
interest to certain persons or groups within the community,
including persons or groups who may consider they have experienced
a loss of cultural property as a result of human rights violations
in the past. Requiring consultation prior to importation provides a
mechanism for the identification of any issues in relation to a
proposed loan as well as opportunities for members of communities
to raise any concerns about the proposed loan.

This provision
will also enable specific consultation requirements to be developed
in relation to proposed loans of Aboriginal and Torres Strait
Islander objects. Those requirements will provide
opportunities for Indigenous people who may have an interest in
objects proposed for loan to learn about and be actively engaged in
discussions on proposed loans prior to their importation into
Australia.

In addition,
paragraph 21(3)(c) provides that regulations may be made requiring
borrowing institutions to publish information about objects
proposed to be lent to them. The publication of information
about an object that will be protected under Part 2 of the Bill,
prior to its importation into Australia, will enable any person to
raise questions about the object’s history and
ownership. This is an important transparency mechanism and
provides information to assist persons who may be victims of human
rights violations to locate objects they believe were stolen,
looted or otherwise unlawfully taken.

The Bill does
not affect the right to bring a claim in the jurisdiction where the
object is usually kept.

The Bill does
not affect the ability of persons or groups to make claims in
relation to objects which are already in collections in Australia
as the Bill does not apply to those objects.

Right to
self-determination

The Bill
engages the right to self-determination, particularly the right to
pursue cultural development.

Article 1 of
the International Covenant on Civil and Political Rights (ICCPR)
and Article 1 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) recognise a person’s right to
self-determination and by virtue of that right their freedom to
pursue their economic, social and cultural
development.

As stated in
the section on the right to an effective remedy, the Bill provides
a temporary limitation on the right of a person to commence action
through the Australian legal system (clause 9), or to enforce a
judgement or order of a federal court or a court of a State,
Territory or foreign country (clause 10), while an object protected
under Part 2 of the Bill is in Australia’s
jurisdiction.

In recognition
that some Aboriginal and Torres Strait Islander material is
particularly sensitive and culturally important, the Bill will not
apply to significant Australian heritage objects that are
identified as Class A objects under the PMCH Act.
Aboriginal and Torres Strait Islander material in that category
includes human remains, bark and log coffins, secret sacred ritual
material, rock art and dendroglyphs.

The inclusion of other
Aboriginal and Torres Strait Islander objects in this Bill has been
made to encourage foreign lenders who hold such objects in their
collections to consider lending those objects to Australian
institutions for temporary public exhibition. This will
increase awareness of those objects in foreign collections and
provide an opportunity for members of Aboriginal and Torres Strait
Islander communities to see and connect with objects from their
cultural heritage that may not otherwise be loaned to Australian
institutions. If Aboriginal and Torres Strait Islander
objects were excluded from the Bill, lenders may not consent to
loan those objects to Australian institutions and their presence in
foreign collections may remain unknown.

The Bill also includes
provisions enabling regulations to be
made requiring borrowing institutions to consult with groups who
may have an interest in proposed loans as well as requiring that
borrowing institutions publish certain information on proposed
loans prior to their importation into Australia (clause 21
refers). That will enable specific consultation requirements
to be developed in relation to proposed loans of Aboriginal and
Torres Strait Islander objects. These safeguards provide an
opportunity for persons and groups who may have an interest in an
object which is the subject of a proposed loan to raise concerns
about its history and ownership prior to a decision being made on
the importation of the object. The publication provisions are
an important transparency mechanism and provide information to
assist persons who may be trying to locate objects they believe may
have been stolen, looted or otherwise unlawfully
taken.

Right to a fair
hearing

The Bill engages the right
to a fair hearing, particularly the right to a fair and public
hearing before a competent court. Article 14(1) of the
International Covenant on Civil and Political Rights (ICCPR)
provides that all persons shall be equal before the courts and
tribunals and that in the determination of any criminal or civil
proceedings that everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal
established by law.

The Bill provides a
temporary limitation on the right of a person to commence legal
proceedings through the Australian legal system (clause 9), or to
enforce a judgement or order of a federal court or a court of a
State, Territory or foreign country (clause 10), while an object
which is protected under Part 2 of the Bill is in Australia’s
jurisdiction. Some persons may consider that the Bill affects
their right to a fair hearing because it will limit their ability
to commence proceedings or enforce judgements relating to objects
protected under Part 2 of the Bill while they are in
Australia.

To the extent the Bill
limits the right to a fair hearing, particularly the right to real
and effective access to a court for civil claims, that limitation
is reasonable, necessary and proportionate. The Bill merely
limits court action and the enforcement of judgements or orders
while an object is in Australia and does not prevent claims from
being started or action being taken to enforce judgements once the
object is exported out of Australia. The protection provided
by the legislation in this respect is only
temporary.

Other than the limited
exceptions for some protected persons for an object (subclauses
9(3) and 10(3)), the Bill does not discriminate against particular
groups of people in limiting the commencement of legal proceedings
or the enforcement of judgements and applies equally to all persons
within Australia. In addition, the clauses in the Bill which
provide protection from suit and protection from enforcement of
judgements (namely, clauses 9 and 10) are not designed to alter the
jurisdiction of Australia’s courts. The relevant
clauses are not addressed to the courts themselves and do not
detract from the power of courts to control their own processes nor
does the Bill seek to change the character or constitution of the
courts or their nature as judicial organs. The
limitation on the ability to take action through the Australian
legal system for the limited period of the loan, has been balanced
against the public interest of the significant social, economic and
cultural benefits that can be delivered as a result of Australian
institutions being able to secure loans.

Conclusion

This Bill
promotes the right to enjoy and benefit from culture by increasing
access to objects brought into Australia under a loan arrangement
for temporary public exhibition. The Bill is compatible with
human rights because it advances the protection of human rights and
to the extent that it may also limit human rights, those
limitations are reasonable, necessary and proportionate.

NOTES ON
CLAUSES

Part 1 -
Preliminary

Clause 1
- Short title

The Bill, when
enacted, should be cited as the Protection of Cultural Objects
on Loan Act 2012 .

Clause 2
- Commencement

This clause
provides for the commencement of the Bill.

Item 1 of the
table in subclause 2(1) provides that clause 1 (Short title) and
clause 2 (Commencement) and any other clause of the Bill not
provided for are to commence on Royal Assent.

Item 2 of the
table provides that clauses 3 to 21 (the remaining clauses of the
Bill) are to commence on a single day to be fixed by
Proclamation. If the provisions do not commence within the
period of 6 months beginning on the day the Bill receives the Royal
Assent, they commence on the day after the end of that
period.

Clause 3
- Objects of this Act

This clause
sets out the main purpose of the Bill, which is to encourage
lenders to loan objects for temporary public exhibition in
Australia. Such loans are to be made under arrangements
involving certain institutions.

The Bill
achieves its objective by limiting the circumstances in which
ownership or physical possession, custody or control of the objects
can be affected while they are in Australia.

Clause 4
- Simplified outline

This clause
provides a simplified outline of the Bill. It has been
included to aid understanding of the relevant clauses. It
explains that the Bill deals with objects that are normally in a
foreign country but which are imported into Australia under a loan
arrangement for temporary public exhibition. The object
must be imported under arrangements made by an institution that has
been approved by the Minister.

Part 2 limits
the circumstances in which specified persons involved in a loan can
lose ownership or physical possession, custody or control of the
objects.

Part 3 deals
with the approval (and the end of such approval) of institutions by
the Minister.

Part 4 deals
with miscellaneous matters.

Clause 5 -
Definitions

Clause 5 sets
out definitions of key terms used in the Bill. Some of the
more significant definitions are:

· “borrowing
institution” is an organisation in Australia that collects
and publicly exhibits objects that are of interest for
archaeological, artistic, ethnological, historical, literary,
scientific or technological reasons. It must also be either
established by a law of the Commonwealth, a State or a Territory
(except for those laws prescribed in the regulations) or be
prescribed in the regulations. A borrowing institution could
include, but is not limited to, a Commonwealth, State or Territory
art gallery, museum, library or archive and it may be a legal
person or not.

· “exhibiting
institution” is a borrowing institution that has made
arrangements for the temporary public exhibition of an object in
Australia. This term is used to explain a borrowing
institution’s relationship with an object.

· “exhibition
facilitator” for an object is a person who has a temporary
loan arrangement for the object with a lender of the object and
also has a temporary loan arrangement for the object with an
exhibiting institution for the object or the parent of such an
institution. An exhibition facilitator is not a lender of the
object, an exhibiting institution for the object or the parent of
such an institution. An exhibition facilitator is a
person who carries on a business (whether or not for profit) of
making arrangements for temporary public exhibition in Australia of
objects from collections outside of Australia. Exhibition
facilitator has been defined because institutions do not always
make the arrangements for all the temporary public exhibitions that
they hold. From time to time an institution may be involved
in a loan arrangement that has been organised by another party; an
exhibition facilitator.

· “lender” of an
object is either an individual not ordinarily resident in
Australia; a corporation incorporated by or under a law of a
foreign country; or a body politic of a foreign country (or part of
a foreign country). The term has been defined in this manner
as the Bill only applies to objects that are normally in a foreign
country. The definition makes it clear that a lender must be
a party to the temporary loan arrangement through which the object
will be imported into Australia and it sets out the other parties
that must be subject to the temporary loan arrangement. The
definition also makes it clear that the lender of an object would
reasonably be expected to have physical possession, custody or
control of the object outside of Australia for the period of the
loan. A lender could include but is not limited to an
individual not ordinarily resident in Australia, a national gallery
or museum in a foreign country or a foreign corporation.

· “parent” is a
term that is specific to a borrowing institution that is not a
person. It means, if the institution is a Department of
State, or part of such a department, of the Commonwealth, a State
or a Territory - the Commonwealth, State or Territory (as
appropriate); or if the operations of the institution are a
distinct part of the operations of a body corporate - that
body. For example, if a Commonwealth borrowing institution is
not a separate legal entity but part of a Department of State then
the Commonwealth would be its parent. An example in relation
to a body corporate would be if there was an institution that
operated as a separately branded art gallery within a larger body
corporate, the parent of the gallery would be the body
corporate.

· “protected
person” for an object is a person who is involved in the loan
of the object or is engaged to do certain things in relation to an
object while it is in Australia. The term has been defined to
include:

o the lender of
the object or an officer, employee or agent of a lender of the
object who accompanies the object for some or all of the time it is
on loan; or

o an exhibition
facilitator for the object or an exhibiting institution for the
object or the parent of such an institution or an officer,
employee, agent or delegate of such an institution or the parent of
such an institution, or

o a person (or an
officer, employee, agent or delegate of the person) engaged by a
lender of the object, an exhibition facilitator for the object or
an exhibiting institution for the object or the parent of such an
institution to do certain things as specified in that
definition.

Clause 6
- This Act binds the Crown

Clause 6
explains that the Act binds the Crown in each of its
capacities . That is, it binds
the Crown in right of the Commonwealth, of each of the States, of
the Australian Capital Territory, of the Northern Territory and of
Norfolk Island.

Clause 7
- Extension to external Territories

Clause 7 makes
it clear that the operation of the Bill will extend to every
external territory of Australia. As the Bill does not extend
beyond Australia’s external territories, it will not
prevent action being taken outside Australian territory, such as
under the law of the state where the object on loan is usually
located or under the law of a third state while the cultural object
is in transit to or from Australia.

Part 2
- Protection

Clause 8
- Application of this Part

Clause 8 deals
with the circumstances when Part 2, which relates to protection,
will apply to an object and when that protection will
cease.

Subclause
8(1)

Subclause 8(1)
sets out the circumstances that must be met for protection to
apply.

Paragraph
8(1)(a)

Paragraph
8(1)(a) provides that Part 2 will only apply to an object that is
imported into Australia on loan under a temporary loan arrangement
between a lender and either or both an:

·
exhibiting institution or its parent (sub-paragraph
8(1)(a)(i));

·
exhibition facilitator that has an arrangement for the object with
an exhibiting institution or their parent (sub-paragraph
8(1)(a)(ii)).

Part 2 will
apply if an object is imported into Australia for temporary public
exhibition involving a single exhibiting institution as well as if
it is imported for a temporary public exhibition involving multiple
exhibiting institutions.

Examples of
some of the temporary loan arrangements captured by this paragraph
are set out below.

· The object
is imported under a temporary loan arrangement between the
lender and an exhibiting institution for temporary public
exhibition. The object then moves to another venue for
temporary public exhibition as part of that same loan
arrangement.

· The object
is imported under a temporary loan arrangement between the lender
and an exhibiting institution for temporary public
exhibition. The object then moves to another exhibiting
institution for temporary public exhibition under a separate
temporary loan arrangement between the lender and the second
exhibiting institution. For the second exhibition, the objects
would already have been imported into Australia and would merely be
moved from the first exhibiting institution to the second
exhibiting institution.

· The object
is imported under a temporary loan arrangement involving the
lender, an exhibition facilitator and an exhibiting
institution. The object then moves to another exhibiting
institution for temporary public exhibition under a separate
temporary loan arrangement between the lender, an exhibition
facilitator and a second exhibiting institution. This
situation could also occur where there are two parts to the
temporary loan arrangements, for example, if there is a temporary
loan arrangement between the lender and exhibition facilitator and
then another temporary loan arrangement between the exhibition
facilitator and exhibiting institution. For the second
exhibiting institution the objects would already have been imported
into Australia and would merely be moved from the first exhibiting
institution to the second one.

The effect of
paragraph 8(1)(a) is to limit the application of Part 2 of the Bill
to objects that normally reside in a foreign country and that are
part of a temporary loan arrangement. Providing protection to
objects that are normally in foreign countries responds to the
obstacle that Australia’s major collecting institutions have
faced in securing loans of foreign objects. Loans of those
objects for temporary public exhibition are essential to the
ability of Australia’s major institutions to provide access
to a broad range of cultural objects and to deliver their
exhibition programs. This impact is most significant on the
ability of Australia’s institutions to deliver major
international exhibitions, which in turn deliver significant
social, economic and cultural benefits to the local economies and
communities where the institutions are located.

The effect of
sub-paragraph 8(1)(a)(ii) is that objects which are part of
an exhibition organised by an exhibition facilitator for the object
will also be covered by Part 2 of the Bill where the exhibition
facilitator has an arrangement with either an exhibiting
institution or the parent of such an institution. This
provision has been included in recognition of the fact that
institutions do not necessarily directly organise all of the
exhibitions that they host. From time to time, an institution
may host an exhibition that has been organised by an exhibition
facilitator. In that circumstance, the loan arrangements can
vary. For example, there may be a loan agreement between the
lender and the exhibition facilitator and the exhibition
facilitator may then have another separate agreement with the
exhibiting institution. Alternatively, there may be a loan
agreement involving all three parties to the loan; the lender, the
exhibition facilitator and the exhibiting institution.

Paragraph
8(1)(b)

Paragraph
8(1)(b) provides that Part 2 will only apply to an object if the
object is imported only or mainly for the purpose of temporary
public exhibition. Unless exceptional circumstances exist,
Part 2 will cease to apply to an object at the end of a period of
two years (subclause 8(2) refers). This means that Part 2
will not apply to objects on long term loan.

This provision
ensures that Part 2 of the Bill can still apply to an object even
if part of the reason for its importation is for a purpose other
than temporary public exhibition. Examples where this may
occur would be if an object is imported and undergoes conservation
treatment prior to being placed on temporary public
exhibition. Another example would be if an object needs to be
stored following importation as it will not immediately be placed
on public exhibition. The need to temporarily store objects
can arise with touring exhibitions, where objects may arrive in
Australia following the end of an exhibition in another country but
where the Australian institution is not ready for the immediate
exhibition of the object.

Paragraph
8(1)(c)

Paragraph
8(1)(c) makes it clear that for Part 2 of the Bill to apply to an
object the institution must be approved under Part 3 of the Bill at
the time when the object is imported into Australia.

Paragraph
8(1)(d)

Paragraph
8(1)(d) deals with the extent to which the Bill is supported by the
Constitution. It means that the operative provisions in Part
2 will apply only in the circumstances where their application is
within the constitutional power of the Commonwealth
Parliament. The inclusion of this provision means that the
legislation should be read as only applying to the circumstances in
which the Commonwealth has constitutional power. For Part 2
to apply, one or more of the following circumstances must
exist:

· the loan
is in the course of trade or commerce between Australia and a
foreign country;

· the lender
of the object is a foreign corporation within the meaning of
paragraph 51(xx) of the Constitution;

· the
institution, the parent of the institution or the exhibition
facilitator is a corporation to which paragraph 51(xx) of the
Constitution applies or a corporation established by a law of the
Commonwealth or a Territory;

· the parent
of the institution or the exhibition facilitator is the
Commonwealth or a Territory;

· the public
exhibition of the object is to occur, is occurring or has occurred
in a Territory;

· the public
exhibition of the object is to occur, is occurring or has occurred
in a place acquired by the Commonwealth for public purposes within
the meaning of paragraph 52(i) of the Constitution;

· Part 2 is
appropriate and adapted to giving effect to Australia’s
obligations under an agreement that is between Australia and one or
more foreign countries or international organisations and that is
relevant to the loan of the object by the lender.

Paragraph
8(1)(e)

Paragraph
8(1)(e) specifies that Part 2 will apply to an object so long as
importation of that object does not contravene a law of the
Commonwealth, that gives effect to an international agreement, and
that law is prescribed by regulation for the purpose of the
paragraph. This provision will enable Australia to comply
with its international treaty obligations by prescribing relevant
legislation by regulation.

Paragraph
8(1)(f)

Paragraph
8(1)(f) specifies that the Part will apply so long as the object is
not a Class A object as defined under the Protection of
Movable Cultural Heritage Act 1986 (PMCH Act) when the object
is imported. The exclusion of Class A objects from the
application of the Bill recognises that those objects have already
been identified as significant Australian heritage objects and for
that reason, it is considered appropriate that they will continue
to be regulated by the PMCH Act. It also recognises that the
Aboriginal and Torres Strait Islander cultural material in that
category is particularly sensitive and culturally important.
It includes human remains, bark and log coffins, secret sacred
ritual material, rock art and dendroglyphs (carved trees).
Non-Indigenous Class A objects are excluded from the
application of the legislation and include each piece of Ned
Kelly’s armour and specified Victoria Cross
medals.

Paragraph
8(1)(g)

Paragraph
8(1)(g) allows an institution to give a written notice to the
Minister specifying objects to which Part 2 of the Bill is not to
apply. Such a notice must be made before the object is
imported, in the form approved by the Minister, and cannot have
been withdrawn before the object is imported. This provision
has been included as there may be circumstances where an
institution determines that they do not need Part 2 of the Bill to
apply to certain objects. By opting-out of the application of
Part 2 of the Bill for certain objects, the institution will not be
required to meet any of the associated administrative requirements
for objects that are protected under the scheme, such as the
publication or consultation requirements which are proposed to be
specified by regulation (paragraph 21(3) refers).

Subclause
8(2)

Subclause 8(2)
sets out the circumstances in which Part 2 will cease to apply to
the object.

Paragraph
8(2)(a)

Paragraph
8(2)(a) provides that Part 2 of the Bill will cease to apply to the
object either at the end of 24 months, starting on the day the
object is imported into Australia, or upon the export of the object
from Australia. The Part will cease to apply upon whichever
event occurs first. This means that if an object is not
exported within 24 months of its importation into Australia, Part 2
will automatically cease to have effect at that time. The
application of Part 2 has been limited in this way as the purpose
of the scheme is to protect objects on loan for temporary public
exhibition and most of those arrangements are for periods of less
than 24 months.

Paragraph
8(2)(b)

Paragraph
8(2)(b) enables the Minister to declare, by notice published on the
Department’s website, that Part 2 will cease to apply to an
object at a time that is worked out in accordance with the
declaration and that is at least 24 months after the day the object
was imported into Australia. Such a declaration must be made
before the end of 24 months, starting on the day the object is
imported into Australia, or before the export of the object from
Australia. This provision is included to allow the
possibility of an extension to the period of protection in
exceptional circumstances (see paragraph 8(3)(b)).

Subclause
8(3)

Subclause 8(3)
provides that the Minister may make a declaration for the purposes
of paragraph 8(2)(b) only upon application by the exhibiting
institution and only if the Minister is satisfied that exceptional
circumstances justify making the declaration.

An example of
where the Minister might make such a declaration would be if the
exhibiting institution made an application to the Minister that
there was a requirement for conservation work to be undertaken to
repair damage that had occurred to an object during the loan
period, where the time required for that work to be undertaken
would result in the object being in Australia for more than 24
months and the Minister was satisfied that the conservation work
was an exceptional circumstance that justified making the
declaration. Another example may be if the object(s) were
part of an exhibition that was touring to multiple venues in
Australia and the cumulative period of time the object(s) would be
in Australia was to exceed 24 months.

Subclauses
8(4)

A declaration
made by the Minister under subclause 8(3) is administrative in
effect and therefore is not a legislative instrument under section
5 of the Legislative Instruments Act 2003. Subclause
8(4) confirms this and is included to assist
readers.

Subclause
8(5)

Subclause 8(5)
explains that an object is neither imported into Australia nor
exported from Australia merely because it is moved between an
external Territory and either a State or an internal
Territory.

Clause 9
- Protection from suit

This clause
sets out the circumstances when an object will be protected from
suit. In order to provide comprehensive protection for
objects while they are on temporary loan, the Bill includes
provisions that limit suit claims.

Clause 9
provides that proceedings for an action in personam
(subclause 9(1) refers) relating to the object cannot be started
against a protected person (clause 5 defines ‘protected
person’), and proceedings for an action in rem
(subclause 9(2) refers) relating to the object cannot be
started.

Subclause
9(1)

Subclause 9(1)
prevents proceedings for an action in personam relating to
the object being started against protected persons for the
object. This means that proceedings will not be able to be
brought against protected persons involved in the loan of the
object, such as the lender of the object, the exhibition
facilitator for the object, an exhibiting institution for the
object or other persons who fall within the definition of protected
person (clause 5 refers).

Subclause
9(2)

Subclause 9(2)
prevents proceedings for an action in rem being started in
relation to the object. This provision prevents action being
brought against a person where the purpose of the action is to
determine title or to affect interests in specific property.
An example of an action in rem would be if a creditor were
to bring proceedings to try to claim an actual object due to the
lender having unpaid debts they wished to pursue. These types
of claims can be difficult for institutions to identify when
negotiating loans, and for this reason it may not be feasible for
the borrowing institution to fully investigate all such possible
situations.

Subclause
9(3)

Subclause 9(3)
provides an exception to the circumstances preventing the
commencement of proceedings in subclauses 9(1) and 9(2) by
permitting a protected person for the object to start proceedings
against another protected person for the object. This has
been included to enable action to resolve claims, such as the
resolution of a contractual dispute. The Bill includes
an example of an exhibiting institution starting an action against
a person it has engaged to transport the object.

Subclause 9(3)
sets out the circumstances in which a person who is a protected
person for the object, because of a particular paragraph of the
definition of protected person (clause 5 refers), can start
proceedings against another person who is also a protected person
for the object because of that paragraph or a later
paragraph.

This hierarchy
of protected persons recognises the fact that some protected
persons have a higher claim than others to start proceedings and
has been included to protect the lender. At times, people
lower in the hierarchy will have physical possession of the object
and could elect to retain custody of the object. Without this
exception the lender (or a person higher in the hierarchy) would be
unable to start an action to reclaim the object.

The hierarchy
is demonstrated in the example in the Bill, where the exhibiting
institution is able to start action against the transport
contractor but the transport contractor cannot start action against
the exhibiting institution because it is in a lower paragraph in
the definition of protected person (see clause 5).

Subclause
9(4)

Subclause 9(4)
provides an exception to the circumstances preventing the
commencement of proceedings in subclauses 9(1) and 9(2) by
permitting proceedings under the Proceeds of Crime Act 2002
or proceedings prescribed by regulation. The Proceeds of
Crime Act 2002 establishes a scheme to trace, restrain and
confiscate the proceeds of crime against Commonwealth law and, in
some cases, confiscate proceeds of crime against foreign laws or
State laws. Proceedings under the Proceeds of Crime Act
2002 have been exempted from the Bill in recognition of
Australia’s international obligations in relation to proceeds
of crime and because the Bill is not intended to provide protection
for criminal action.

An exception is
also provided for proceedings prescribed by regulation. The
ability to prescribe proceedings by regulation has been included as
it provides a mechanism to enable proceedings to be excluded
following the commencement of the Bill. This exception also
recognises the possibility of the enactment of future laws to which
the Commonwealth may not want subclause 9(1) and (2) to
apply.

Subclause
9(5)

Subclause 9(5)
explains that clause 9 applies to the starting of proceedings in a
federal court or a court of a State or Territory by claim,
cross-claim or otherwise. Preventing action being commenced
in federal, State and Territory courts enables the object to be
protected from point to point, including across jurisdictional
boundaries, following importation into Australia. It is not
uncommon for objects on loan to be transported across
jurisdictional boundaries. This occurs when objects tour to
multiple venues, however, it can also occur if an object arrives in
one city and is transported to another city for exhibition.
An example would be a shipment of paintings arriving at Sydney
international airport and being transported by air or road to an
exhibition being held in Canberra.

Clause 10
- Protection from enforcement of judgements and
orders

This clause
sets out the circumstances in which an object will be protected
from the enforcement of judgements and orders.

Subclause
10(1)

Subclause 10(1)
provides that an act cannot be done in relation to the object to
enforce a judgement or order of a federal court or a court of a
State, Territory or foreign country that is a judgement or
order:

·
in personam ,
that is, against a protected person for the object; or

·
in rem ,
that is, relating to the object itself.

The effect of
subclause 10(1) is that a judgement or order of a federal court or
a court of a State or Territory or foreign country that relates to
an object cannot be enforced against the object. Preventing
the enforcement of such judgements or orders enables the object to
be protected from point to point, including across jurisdictional
boundaries, following importation into Australia.

An example of
the effect of this provision is where a judgement or order has been
given by a State court in relation to an object. The
judgement or order would not be able to be enforced against the
object so long as Part 2 of the Bill applied to the
object.

Subclause
10(2)

Subclause 10(2) sets out
exceptions to the prevention on enforcement of actions in subclause
10(1) for some foreign judgements and awards. By this
provision, enforcement action is not prevented under:

· Part 2 of the
Foreign Judgments Act 1991 to enforce a judgement of a
superior court of a country in relation to which that Part extends
or an inferior court to which that Part extends;

· Part 7 of the
Trans-Tasman Proceedings Act 2010 to enforce a
judgement of a court of New Zealand; or

· Part II of the
International Arbitration Act 1974 .

These
exceptions have been included in the Bill to ensure that Australia
is not in breach of its international obligations or reciprocal
arrangements that it has with other countries for recognition and
enforcement of judgements.

The Foreign
Judgments Act 1991 recognises reciprocal arrangements that
Australia has with other countries for the recognition and
enforcement of judgements. The Foreign Judgments Act
1991 only currently allows for the registration of judgements
in Australia from courts that are prescribed in the Foreign
Judgments Regulations 1992 for a fixed monetary sum.

The
Trans-Tasman Proceedings Act 2010 is underpinned by a
bilateral treaty, the Agreement between the Government of
Australia and the Government of New Zealand on Trans-Tasman
Court Proceedings and Regulatory Enforcement . Once the
Act commences, it will provide for New Zealand judgements and
orders to be registered and enforced in Australia.

Part 2 of the
International Arbitration Act 1974 relates to the
enforcement of foreign awards under the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards.
Australia is a contracting state for that Convention.

Subclause
10(3)

Subclause 10(3)
sets out the circumstances in which the enforcement of a judgement
or order in favour of a protected person for the object is not
prevented. This exception aligns with the exception which
allows protected persons to start proceedings subject to a
hierarchy (subclause 9(3) refers). As with subclause 9(3),
there is a hierarchy in relation to the enforcement of judgements
and orders favouring protected persons. The hierarchy means
that a judgement or order in favour of a protected person for the
object will only be able to be enforced against a protected person
for the object if that protected person is in the same paragraph as
them in the definition of protected person or a later
paragraph.

Subclause
10(4)

Subclause 10(4)
sets out exceptions relating to the enforcement of certain other
judgements and orders. As with clause 9, an exception is
provided for an order made under the Proceeds of Crime Act
2002 . Orders made under that act have been exempted as
Australia has international obligations in relation to proceeds of
crime.

An exception is
also provided for a judgement or order made in proceedings
prescribed by regulation for the purposes of the subsection.
The ability to prescribe proceedings by regulation has been
included as a mechanism to enable proceedings to be excluded
following the commencement of the scheme. This exception
recognises the possibility of the enactment of future laws to which
the Commonwealth may not want subclause 10(1) and (2) to
apply. An example where this provision may be utilised would
be if Australia became a party to a new international agreement
relevant to the enforcement of judgements and orders and then
enacted legislation to give effect to its obligations under the
agreement.

Clause 11
- Protection from seizure under statutory
powers

This clause
sets out the protection that an object will have from seizure under
certain statutory powers.

Subclause
11(1)

Subclause 11(1)
provides that an object cannot be seized under a law of the
Commonwealth, a State or a Territory. Protection is provided
against action under State and Territory legislation as well as
Commonwealth legislation in order to ensure that there is
comprehensive protection from seizure for objects on loan.
This provision will enable the object to be protected from point to
point, including across jurisdictional boundaries, following
importation into Australia.

Subclause
11(2)

Subclause 11(2)
sets out the exceptions to the protection from seizure in subclause
11(1). It does not prevent seizure under:

·
Part IAA of the Crimes Act 1914 ; or

·
Part 3-5 of the Proceeds of Crime Act 2002 ; or

·
a law of the Commonwealth, a State or a Territory that gives a
police officer (however described) a power of seizure and does not
give that power to anyone other than a police officer;
or

·
a law of the Commonwealth, a State or a Territory prescribed by
regulation for the purposes of this subsection.

The exceptions
have been included to recognise that there may be circumstances
where it is appropriate that police officers retain the ability to
seize an object. Seizure is also not prevented if the action
is undertaken under a law of the Commonwealth, a State or a
Territory that gives a police officer a power of seizure and does
not give that power to anyone other than a police officer. An
example of where seizure in this circumstance may be required would
be if an object was used in a crime, or was otherwise required to
be held as evidence of a crime committed during the period of the
loan and needed to be seized by a police officer and held as
evidence. Another example (although highly unlikely) of where
this provision would be relevant is if an object on loan was used
in a homicide or serious assault, and where the infliction of
injury or cause of death are crucial points of proof and the object
is required in court as evidence in criminal
proceedings.

Clause 12
- Protection from forfeiture

Clause 12 sets
out the protection from forfeiture that will be provided to
objects. It provides that an object cannot be forfeited
because of a law of the Commonwealth, a State or a Territory,
except in the limited circumstances set out in subclause
12(2).

Subclause
12(1)

Subclause 12(1)
prevents forfeiture under State and Territory legislation as well
as Commonwealth legislation. This enables the object to be
protected from forfeiture from point to point, including across
jurisdictional boundaries, following importation into
Australia.

Subclause
12(2)

Exceptions to
the protection from forfeiture are set out in subclause
12(2). They are consistent with the other protection clauses
in the Bill (clauses 10 and 11) which do not prevent action being
taken under the Proceeds of Crime Act 2002 . It is also
consistent with clause 11 by not preventing action being taken
under the Crimes Act 1914 .

Clause 13
- Protection from heritage laws and things done under
them

Clause 13 sets
out the protection from heritage laws (clause 5 defines
‘heritage law’) and things done under them.
Heritage laws are defined as encompassing laws of the Commonwealth,
a State or a Territory that relate to heritage, whether or not the
law relates to:

heritage of a
particular community (such as Aboriginal or Torres Strait Islander
heritage); or

heritage of a
particular kind (such as objects associated with historic
shipwrecks, records of government or archival
material).

Subclause
13(1)

Subclause 13(1)
explains that heritage laws cannot affect a protected person for an
object where their activities relate to the object for the purpose
of:

·
giving effect to a temporary loan arrangement for the object
(paragraph 13(1)(a)); or

·
meeting the person’s obligations to another protected person
who is party to a temporary loan arrangement for the object
(paragraph 13(1)(b)).

Subclause
13(2)

Subclause 13(2)
provides that nothing done under a heritage law affects:

ownership of
the object; or

physical
possession, custody or control of the object by a protected
person; or

a right of a
protected person to physical possession, custody or control of the
object.

This provision
captures the broad range of actions, additional to those actions
specifically identified in clauses 9, 10, 11 and 12, that may be
undertaken under statute. The Bill limits those actions in
order to provide comprehensive protection to objects on temporary
loan. Examples of some of the actions that exist in heritage
laws, and which would be limited by this provision, include the
issuing of declarations in relation to an object, the giving of
directions in relation to an object or prohibitions on certain
actions in relation to an object.

The Bill limits
action under laws that fall within the definition of heritage laws
as those are the laws which would be of most relevance to objects
imported into Australia for temporary public exhibition. This
provision is most likely to be of relevance to objects of an
Australian origin which have entered into foreign collections and
which are subsequently proposed to be imported into Australia on
loan for temporary public exhibition.

To balance
this, the Bill also provides that regulations may be made for the
purposes of enabling consultation by borrowing institutions with
communities or organisations (clause 21 refers). These
consultation requirements would be relevant to proposed loans of
Aboriginal or Torres Strait Islander objects or loans of archival
material

Subclause
13(3)

Subclause 13(3)
provides an exception for heritage laws that are prescribed by
regulation.

Subclause
13(4)

Subclause 13(4)
explains that clause 13 does not limit any other section in Part 2,
and is not limited by any other section of Part 2.

Clause 14
- Relationship with other laws

Clause 14 sets
out the relationship between the Bill and other laws. To
achieve its objective the Bill limits the circumstances in which
action can be taken under certain laws. Clause 14 provides
that Part 2 applies to the exclusion of certain Commonwealth
laws, whether made before or after the commencement of the Bill,
and any rule of common law or equity, including, for example, a
rule of private international law.

Part 3
- Approval of institutions

Division 1
- Approval

Clause 15
- Approval

Clause 15
explains that borrowing institutions must make an application to
the Minister for approval and it sets out factors relevant to the
Minister in exercising his or her power to approve the
institution.

The scheme will
operate as an approval based scheme. The operation of the
scheme will mean that objects, normally in a foreign country, will
be protected if they are imported into Australia on loan for
temporary public exhibition under arrangements involving
institutions approved by the Minister.

Decisions made
by the Minister under clause 15 are reviewable by the
Administrative Appeals Tribunal (AAT) (see clause 18).

Subclause
15(1)

Subclause 15(1)
makes it clear that the process for approval will operate on an
application basis. The Minister may only approve a borrowing
institution upon receipt of an application from a borrowing
institution or their parent. The Minister may approve the
institution by notice given to the institution and published on the
Department’s website.

Subclause 15(1)
provides that the approval of an institution is for a specified
period of not more than 60 months. Limiting the period of
approval means institutions will need to make another application
for approval if they wish to continue to be approved under Part 3
of the Bill after the expiry of their approval. It is
appropriate to limit the period of approval as an
institution’s operations may be subject to change over
time. Requiring them to reapply for approval enables an
institution’s procedures to be reassessed by the
Minister. That is appropriate because the Minister needs to
be satisfied that the institution has the capacity to satisfy the
requirements of the legislation and regulations.

Subclause
15(2)

Subclause 15(2)
sets out the matters the Minister must consider in deciding whether
to approve a borrowing institution and provides that other matters
may be prescribed by regulation. It also makes it clear that
the Minister’s decision to approve an institution is not
limited to the matters specified in the Bill or prescribed by
regulation.

The intention
of this Bill is to address a significant obstacle that
Australia’s major institutions face in securing loans of
foreign objects. The purpose is not to support the exhibition
of stolen or illegally exported works, or works that have uncertain
provenance. Given this, the matters the Minister
must consider are focussed on processes associated with loan
arrangements. Matters that fall within the scope of subclause
15(2) include an institution’s:

·
curatorial and collection management expertise;

·
procedures for provenance identification of objects collected or
exhibited;

·
procedures used to identify objects in a foreign country that could
be the subject of a loan;

·
procedures for negotiating temporary loan arrangements for objects
that are normally in a foreign country; and

·
experience exhibiting foreign loans.

As objects
brought into Australia under arrangements by an approved
institution are automatically protected, the integrity of the
legislation is contingent on the practices and expertise of the
approved institutions. Therefore it is crucial that
institutions seeking approval are able to clearly demonstrate the
necessary expertise, rigour, capacity and resources to meet those
demands. The inclusion of those requirements in the Bill
supports Australia’s continued ability to meet its
international obligations under the 1970 UNESCO Convention on
the Means of Prohibiting and Preventing the Illicit Import, Export
and Transfer of Ownership of Cultural Property by ensuring
approved institutions have demonstrated procedures and practices
that guard against the import of illicitly obtained
objects.

Subclause
15(3)

A notice made
by the Minister under subclause 15(1) is administrative in effect
and therefore is not a legislative instrument under section 5 of
the Legislative Instruments Act 2003. Subclause 15(3)
confirms this and is included to assist readers.

Clause 16
- Conditions of approval

Clause 16
enables the Minister to impose, vary and revoke conditions on the
approval of a borrowing institution by notice given to the
institution. Such a notice must be provided by the Minister
in writing and it must be published on the Department’s
website.

An example of a
condition that the Minister may impose on a borrowing institution
would be if the Minister included a requirement that the borrowing
institution undertake an external audit of its compliance with the
provisions of the legislation and regulations, and to provide that
report to the Minister.

A decision made
by the Minister under clause 16 is reviewable by the AAT (see
clause 18).

A notice made
by the Minister under subclause 16(1) is administrative in effect
and therefore is not a legislative instrument under section 5 of
the Legislative Instruments Act 2003. Subclause 16(2)
confirms this and is included to assist readers.

Division 2
-Revocation of approval

Clause 17
- Revocation of approval

Clause 17
provides that the Minister may revoke an approval of a borrowing
institution by notice. Revocation may occur if the Minister
is satisfied that:

·
a borrowing institution has contravened a regulation involving the
institution; or

·
a borrowing institution has contravened any of the conditions of
the approval; or

·
approval should be revoked, having regard to matters considered
when making a decision to approve an institution (which are
described in paragraphs 15(2)(a), (b), (c), (d), (e) and (f)) and
any other relevant matters.

The Minister
may revoke an institution’s approval if he or she is
satisfied that the institution is not maintaining the same
standards of conduct in relation to matters that were considered by
the Minister at the time of approval. Another example would
be if the Minister is satisfied that the institution has not
maintained standards in relation to confirming the provenance of
objects proposed for loan, or if the institution’s processes
for negotiating temporary loan arrangements have changed and are
not considered to be of an appropriate standard.

Part 2 of the
Bill will continue to apply to objects which have already been
imported into Australia under a temporary loan agreement on the
date on which approval is revoked. However, objects imported
into Australia after that date for temporary public exhibition
under arrangements involving the institution will not be protected
because the requirement in paragraph 8(1)(c) would no longer be
satisfied.

A decision by
the Minister under clause 17 is reviewable by the AAT (see clause
18).

A notice made
by the Minister under subclause 17(1) is administrative in effect
and therefore is not a legislative instrument under section 5 of
the Legislative Instruments Act 2003. Subclause 17(2)
confirms this and is included to assist readers.

Clause 18
- Review by the Administrative Appeals
Tribunal

Clause 18
provides that applications may be made to the AAT for the review of
a decision by the Minister to refuse to approve a borrowing
institution under clause 15 or impose or vary a condition on the
approval of a borrowing institution under clause 16 or revoke the
approval of a borrowing institution under
clause 17.

The provision
of this right of review is consistent with Commonwealth policy that
all administrative decisions that affect the interests of a person
be open to review on the merits.

Part 4
- Miscellaneous

Clause 19
- Delegation

Clause 19
enables the Minister to delegate in writing all or any of his or
her functions or powers under the Bill, with the exception of the
function and power under clause 21 (Regulations), to a Senior
Executive Service employee or acting Senior Executive Service
employee of the Department.

Clause 20
- Compensation for acquisition of property

The Bill has
been drafted so as to avoid the potential for any acquisition of
property other than on just terms that would be contrary to section
51(xxxi) of the Constitution. Subclause 20(1) provides that in
cases where the operation of the Bill results in an acquisition of
property the Commonwealth is liable to pay a reasonable amount of
compensation to the person. Subclause 20(2) allows that if
the Commonwealth and the person do not agree on the amount of the
compensation, the person may start proceedings in a court of
competent jurisdiction for such reasonable amount of compensation
as the court determines.

Clause 21
- Regulations

Clause 21
enables the Governor-General to make regulations prescribing
matters required or permitted by this Bill to be prescribed, or
necessary or convenient to be prescribed for carrying out or giving
effect to this Bill.

It is expected
that regulations may need to be made in accordance with this clause
in relation to certain matters required or permitted to be
prescribed under this Bill, including for example consultation and
publication.

Any such
regulations are legislative instruments under section 6(a) of the
Legislative Instruments Act 2003 .